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VTL §1194:  Chemical Testing

Implied Consent to a Chemical Test:      

Any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test to determine the alcoholic and/or drug content of their blood provided that such test is administered by or at the direction of a police officer:

  1.  Within 2 hours after an arrest based on “reasonable grounds to believe” (ie: Probable Cause) that such person was operating in violation of any subdivision of VTL §1192, or
  2. Within 2 hours after a “Field Breath Test” (aka “Preliminary Breath Test”), administered pursuant to VTL §1194(1)(b), which indicates that alcohol has been consumed by such person.[1]

Chemical Tests are conducted after arrest, by the NYPD Highway Patrol at a police facility, or in the case of urine and blood tests, at a hospital. Chemical tests performed by the NYPD utilize the Intoxilyzer 5000EN machine.

Field Breath Test:

Every person operating a motor vehicle which:

  1. Has been involved in an accident, or
  2. Has been operated in violation of any of the provisions of the VTL,

Shall, at the request of a police officer, submit to a breath test.

Refusal to submit to a Field Breath Test is a traffic infraction.[2]

Consequences of Chemical Test Refusal

Refusal to submit to a Chemical Test is a “civil violation – wholly independent of the VTL §1192 charge in criminal Court – which results in proceedings before a DMV Administrative Law Judge (“ALJ”), and generally results in both a significant driver’s license revocation and a civil penalty (i.e., fine).”[3]

The civil consequences of a “First Refusal” to submit to a chemical test are:[4]

  1. Mandatory revocation of the person’s driver’s license or privilege for at least 1 year,[5]
  2. A civil penalty in the amount of $500,[6]
  3. A driver responsibility assessment of $250 per year for 3 years.[7]

The license revocation incurred as a result of a chemical test refusal will run separate and apart from any suspension or revocation incurred as a result of a criminal conviction for VTL §1192.

In other words, there may be two separate periods of license suspension/revocation which may overlap (and run concurrent), but may also run consecutive.[8]

Temporary Suspension of Drivers License upon Refusal to take a Chemical Test:

If a person refuses to submit to a chemical test that has been properly offered pursuant to this section, their driver’s license will be temporarily suspended at arraignment. The suspension will last 15 days or until the outcome of a revocation hearing whichever occurs first.[9]

The Revocation Hearing

Issues at Refusal/Revocation Hearing:

The Refusal/Revocation hearing is limited to the following four issues:

  1. Did the police officer have reasonable grounds to believe (ie: Probable Cause) that such person had been driving in violation of any subdivision of VTL §1192;
  2. Did the police officer make a lawful arrest of such person;
  3. Was such person given sufficient warning prior to refusal that such refusal would result in the immediate suspension and subsequent revocation of such person’s license whether or not such person is found guilty of the charge;
  4. Did such person refuse to submit to the chemical test.[10]

Probable Cause to Arrest for VTL §1192 violation

“Reasonable grounds to believe that a person has been operating a motor vehicle (while intoxicated) shall be determined by viewing the totality of circumstances surrounding the incident.”[11]

The issue of whether the police had probable cause of DUI at the time of arrest is ripe for controversy in NYC because, unlike counties outside the City, in NYC the police generally do not perform field sobriety tests (Horizontal Gaze Nystagmus test, Walk-and-Turn test, One-Leg Stand test, Finger-to-Nose test) at the scene of the car-stop, pre-arrest.

Instead, field sobriety, or coordination tests are usually performed before a video camera, at a police facility, post-arrest.

Cases have held that “a defendant’s later conduct cannot validate an encounter that was not justified at its inception.”[12] So, a motorist’s failure to adequately perform sobriety tests at a police facility post-arrest cannot be used to justify the initial car stop.

But more to the point, a motorist’s successful performance of sobriety tests at a police facility post-arrest may be utilized to challenge the initial car stop and arrest at both the criminal trial and the DMV refusal hearing.[13]

Non-Appearance of the Arresting Officer at Revocation Hearing:

If the respondent (motorist) appears for a first scheduled chemical test refusal hearing, and the arresting officer does not appear, the matter will be adjourned and any temporary suspension still in effect shall be terminated.

At any subsequent hearing, if the arresting officer does not appear, the hearing officer may make findings of fact and conclusions of law based upon the chemical test refusal report and any other relevant evidence in the record.[14]

The Motorist’s Right to Confront and Cross Examine the Arresting Officer:

The fact that the motorist does not have the opportunity to confront or cross examine the arresting officer is irrelevant. It is the motorist’s burden to subpoena the officer in order to cross examine him.

If the motorist does not serve a subpoena on the officer, and the arresting officer does not appear of his own accord, the hearing officer can, on his own initiative, make a finding against the motorist based solely upon the officer’s written report.[15]

However, if the motorist properly issues a subpoena for the appearance of the arresting officer, and the officer fails to appear in derogation of said subpoena, the refusal charge should be dropped.[16]

A subpoena must be served in the same manner as a summons.[17]

The most practical method for service upon a police officer is via delivery of the subpoena to the officer’s “actual place of business”, plus mailing the subpoena to the officer’s “actual place of business.”[18] I take this to mean the officer’s station-house, so be alert as to whether the officer you need is assigned to a police precinct or Highway Unit.

When serving the subpoena, you should also deliver the witness fee which is $15.00.[19]

Service is complete immediately upon the later of the delivery or the mailing of the subpoena.[20]

Upshot: If the officer does not appear on the first date of the Refusal Hearing ask for an adjournment, and have a subpoena for the officer’s appearance delivered and mailed at the officer’s actual place of business (precinct or Highway Unit). When you return to the Revocation Hearing on the next date, bring with you an Affidavit of Service of the subpoena which includes a paragraph stating that the witness fee was tendered.

Pre-Hearing Discovery:

15 NYCRR 27.6(a): Evidence; discovery.

Prior to a hearing, a respondent may make a request to review nonconfidential information in the hearing file including information which is not protected by law from disclosure.

Upshot: Because an adverse ruling can be made solely upon the arresting officer’s paperwork, as contained in the hearing officer’s file, without the officer present to testify or be subjected to cross examination, it is essential to see what is contained in the hearing officer’s file. Send in a request to examine the hearing officer’s file as soon as possible.

Decisions at Refusal hearings are based upon “Substantial Evidence”

The final determination of a refusal hearing can be based upon hearsay, specifically, the arresting officer’s written report of the motorist’s refusal to submit to the chemical test.[21]

The arresting officer does not have to be present to lay a foundation for his report.

The decision of the Hearing Officer need only be based upon “substantial evidence,” which “is less than a preponderance of the evidence and demands only that a given inference is reasonable and plausible, not necessarily the most probable.”[22]

The Substantial Evidence standard “requires only that there be enough relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.”[23]

If you actually win the Refusal Hearing:

VTL 1194(2)(c):

If, after such hearing, the hearing officer…finds on any one of said issues in the negative, the hearing officer shall immediately terminate any suspension arising from such refusal.

When you lose the Refusal Hearing:

VTL 1194(2)(c):

If, after such hearing, the hearing officer…finds on all of said issues in the affirmative, the hearing officer shall immediately revoke the license or privilege to drive.

15 NYCRR 127.10: Decisions:

(a) The hearing officer may announce his or her decision at the conclusion of the hearing or may reserve decision. A written determination of the case, specifying the findings of fact, conclusions of law and disposition, including any penalty or penalties imposed, shall be sent to the respondent and his or her designated representative by first-class mail.

(b) Except where otherwise specified by statute, the effective date of any penalty or sanction shall be a date established by the hearing officer, which shall in no event be more than 60 days from the date of the determination.

(c) If the hearing officer does not render a decision within 45 days of the conclusion of the hearing, the respondent may serve a demand for decision on the hearing officer. Upon receipt of such demand, the hearing officer must render a decision within 45 days, or the charges shall be deemed dismissed.

Upshot: The hearing officer will likely revoke your client’s driver’s license on the record of the hearing before it ends. However, he may not do it in a clear and assertive fashion. Make sure your client understands that he cannot drive before you leave the hearing, do not let him think it is okay to drive until the written decision arrives in the mail.

The Dilemma of Innocence:

For a first offense, a refusal to submit to a chemical test results in a mandatory revocation of the person’s driver’s license or privilege for at least 1 year.[24]

Ordinarily, if a defendant has his driver’s license suspended or revoked, he can obtain a conditional license, providing limited driving privileges, simply by enrolling in the “Drinking Driver Program” administered by the DMV.

However, as explained by Peter Gerstenzang,

Eligibility for the DDP requires an alcohol or drug related conviction. In this regard, VTL § 1196(4) provides, in pertinent part, that:

Participation in the DDP shall be limited to those persons convicted of alcohol or drug-related traffic offenses.

Thus, a person who refuses to submit to a chemical test and whose driving privileges are revoked by DMV as a result thereof (and who is otherwise eligible for a conditional license), will not be able to obtain a conditional license unless and until the person obtains a VTL §1192 conviction. As a result, many people who lose their refusal hearings (and who need to drive to earn a living) are virtually forced to accept a DWAI or DWI plea in criminal court in order to obtain a conditional license. This seemingly unfair restriction on conditional license eligibility has been found to be Constitutional. See Miller v. Tofany, 88 Misc. 2d 247, 250-51 (Sup 1975).[25]

The Administrative Appeal:

  1. Use NYS DMV Administrative Appeal Form (AA-33A) to file your administrative appeal to the revocation hearing decision.
  2. You must send a $10 non-refundable appeal fee with your appeal form.
  3. You must submit your appeal form and fee to the DMV Appeals board within sixty (60) days of the date of the order of suspension/revocation, decision letter, or notice. The date of the USPS postmark on your mailed appeal form will be used to determine timeliness.
  4. You must order and pay for the transcript of the revocation hearing. The Appeals Board will acknowledge receipt of your appeal form and fee with a letter that will also direct you to the designated transcription company. You must send a transcript deposit to the transcription company within 30 days of the letter from the Appeals Board. Do not send transcript payments to the Appeals Board.
  5. Check the box on the appeal form requesting a stay of the driver’s license revocation pending the outcome of the appeal.
  6. On the second page of the appeal form, you must state in detail the reasons for the appeal, and the need for a stay of revocation of driver’s license pending the outcome of the appeal.
  7. There is no personal appearance or oral argument permitted on this administrative appeal.

The Article 78

Exhausting Administrative Remedy

You must exhaust your Administrative Appeal before commencing an Article 78 unless the DMV refuses to grant a stay of driver’s license revocation pending the Administrative Appeal.

In other words, if you don’t get the stay, go straight to Supreme Court via Article 78 with an Order to Show Cause.[26]

Statute of Limitations

BEWARE: The statute of limitations on an Article 78 proceeding is extremely short: Four months from the time the “determination to be reviewed becomes final and binding upon the petitioner.”[27]

There is disagreement about when the SOL begins to run. According to David Siegel:

The lawyer who is not very happy with some of these distinctions (regarding when the statute of limitations begins to run) can find company among hosts of other lawyers who are listed as petitioners’ counsel in Article 78 cases dismissed over the years as untimely. Close divisions even on appellate benches in these matters attest to the difficulty of drawing the right line, and they seem to be a steady progression.[28]

In any event, don’t delay.

NOTE: The appeal will be an expensive undertaking for the client. If he insists on taking some time to think over whether he wants to incur the cost, make sure you give him a written letter, with a copy to the file, advising him of the short statute of limitations.

Standard of Review

Pursuant to CPLR §7803, there are only five questions that can be raised pursuant to Article 78.

The only “question” applicable to an appeal of an adverse decision rendered at a refusal hearing is listed at CPLR §7803(4).

CPLR §7803(4) states: “Whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence.”

Petition

Because an Article 78 is a “Special Proceeding,” it is brought via a petition.[29]

The petition in an Article 78 proceeding must be verified by the client.[30]

Order to Show Cause

Because you want that stay of revocation of your client’s driver’s license, you need to bring your petition via an “Order to Show Cause.”

The “Order to Show Cause” serves the same function as a “Summons” in a plenary action or a “Notice” in an ordinary petition. The added benefit is that you can request “Temporary Injunctive Relief” in the “Order to Show Cause” pending a final resolution of the petition.

The Temporary Injunctive Relief you want is that stay of the revocation of your client’s driver’s license. To accomplish this, in addition to setting out notice of the ultimate relief your petition is seeking, you will draft a proposed order for the judge to sign granting you that stay.

Because you are seeking the stay, you cannot submit your Order to Show Cause ex parte. You must give your adversary notice and an opportunity to show up in Court to oppose it [Rule 202.7(f) Notice].[31]

Because you are proceeding against a state body or officers, you must serve your Order to Show Cause, and your Rule 202.7(f) Notice, upon the state body or officers you are proceeding against, and the office of the Attorney General in the county in which you are proceeding.[32]

So, in our situation, you need to fax a letter to both the Department of Motor Vehicles in Albany, and the NYS Attorney General covering the county you’re in, with a copy of your Order to Show Cause and petition (without exhibits) advising them of the date, time and place that you will be presenting your Order to Show Cause (containing the stay of license revocation) to a judge.

You need to include an affirmation in your papers stating that you have faxed the letter and draft-papers to your adversaries. Then you need to find out who is going to show up to oppose your request for a stay (only the AG will show up but not always oppose). You then need to make arrangements to meet that person at the courthouse when you intend to present your papers to a judge.

Motion Support Desk

On the date agreed upon by you and your adversary, you will take your Order to Show Cause and Verified Petition with exhibits to the courthouse. You will go to the Motion Support Desk, and a clerk will review your papers for completeness.

You must present to the Motion Support Desk a properly filled out “Request for Judicial Intervention.”

The clerk will always look for an affidavit (or paragraph in your petition), pursuant to CPLR §2217(b), attesting to whether “this or similar relief has previously been applied for, (and if so,) what new facts, if any…justify the new motion.[33]

The clerk will also look for a paragraph attesting that you notified your opponent of their opportunity to appear for oral argument opposing the stay of revocation of your client’s driver’s license.

Index Number and RJI

The clerk at the Motion Support Desk will stamp your papers attesting that they pass inspection, and will send you to the County Clerk to purchase an Index Number ($210) and pay the fee on your Request for Judicial Intervention ($95).

The County Clerk will then return the original papers to you, and send you back to the Motion Support Desk to be assigned to a judge.

Appearance Before Judge

You will go before a judge, and if necessary, have oral argument on whether the stay should be granted. Be prepared to argue “immediate and irreparable injury, loss or damage will result” if the stay is not granted pending a final determination on the merits of your petition.[34]

The Signed Order

You will get your Order to Show Cause back from the judge. In addition to the judge’s signature, your Order will include the following:

  • The return date for the motion;
  • Hopefully, the stay of revocation of your client’s license;
  • The date on or before which service of the Order to Show Cause, plus all of the papers upon which it was granted, must be affected on your adversary;
  • The Order should specify who must be served (the Order should specify service upon both the Department of Motor Vehicles, and the Attorney General);
  • The Order should specify the method of service (don’t be surprised if the Order specifies personal service of your papers on the DMV at their offices in Albany);
  • The Order should specify the date upon which the respondents must serve their opposition papers;
  • The Order should specify the date that petitioner must serve a reply, if any;
  • The Order should specify that the respondents must file with the Court and serve on the petitioner a certified transcript of the record of the proceedings.

NOTE: The above order should be drafted in advance by petitioner’s attorney so that the judge is only required to make ink changes before signing it.

Be careful to check the signed Order for changes made by the Judge, and make sure your follow the directives in the order to the letter.

If either the Attorney General, or the Department of Motor Vehicles, is not properly served, it is a jurisdictional defect and your papers will be dismissed. It cannot be assumed that serving one results in service of both.[35]

NOTE: Don’t forget the short Statute of Limitations.

The Record:

CPLR §7804(e) states:

The body or officer shall file with the answer a certified transcript of the record of the proceedings under consideration, unless such a transcript has already been filed with the clerk of the court.

This statutory obligation of the respondent to provide a certified copy of the record is a huge benefit to the petitioner. Although the statute does not require the respondent to serve a copy on the petitioner, if you can get the judge to sign it as part of the order, it becomes an obligation. In all likelihood, the AG will send you one anyway.

Reply Papers:

A reply must be served in response to any “new matter” raised in the answer. ‘New Matter’ includes any “new allegations of fact, regardless of whether such facts are alleged in a counterclaim or affirmative defense or even if they are unlabeled.” “The failure to reply to new facts constitutes an admission.”[36]

“A reply is also required if the petitioner wishes to challenge the accuracy of a transcript annexed to the answer.”[37]

The Appellate Division

All Article 78 proceedings must be commenced in Supreme Court.[38]

However:

  • If the case involves “a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law (ie: a Refusal Hearing)”[39], and
  • If the question is whether the determination made as a result of said hearing is “supported by substantial evidence (ie: whether the hearing officer got it wrong),”[40]
  • The court shall make an order directing that (the case) be transferred for disposition to a term of the appellate division held within the judicial department embracing the county in which the proceeding was commenced.[41]

The only thing the Supreme Court will do is examine your papers to see if they can find any excuse to dismiss them. If they can’t dismiss your case, they will send you to the appellate division.[42]

The Record & Legal Brief

The rules and requirements of reproducing the record, and formatting your brief, are too complicated and arduous for the attorney that does an occasional appeal. There are services that will perform this function for you that are reasonably priced, and extremely helpful, not only in preparing the record, but also in helping you prepare, serve and file your brief.[43]

Notwithstanding the above, you must check the specific rules for the Appellate Division you have been transferred to, as there will be differences between the courts. The rules are available on the Office of Court Administration website, at the links to the individual courts.

Additionally, you must subpoena the original record from the clerk of the County in which you filed your Article 78 petition, and have it delivered to the Appellate Division to which your case has been transferred, within 30 days of the entry of the order transferring the case out of Supreme Court.[44]

Time to Perfect Appeal

In the First Department, you have nine (9) months.[45]

In the Second Department, you have six (6) months.[46]

Click here to View Collateral Consequences of DWI Appendices Redacted

Submitted by:

Michael F. Dailey, Esq.

 

[1] VTL 1194(2)(a)

[2] VTL §1194(1)(b) & VTL §1800(a)

[3] Peter Gerstenzang, Esq., Handling the DWI Case in New York, §41:5 at 783(2007-08 Edition).

[4] Peter Gerstenzang, Esq., Handling the DWI Case in New York, §41:7 at 783(2007-08 Edition)

[5] VTL §1194(2)(d)(1)(a)

[6] VTL §1194(2)(d)(2)

[7] VTL §1199

[8] See Peter Gerstenzang, Esq., Handling the DWI Case in New York, §41:11 at 786(2007-08 Edition), for a detailed explanation of this dilemma.

[9] VTL 1194(2)(b)(3) & VTL 1194(2)(c)

[10] VTL 1194(2)(c)

[11] VTL §1194(2)(a)(3)

[12] People v. Hurdle, 106 AD3d 1100 (2nd Dept. 2013)

[13] Matter of Fermin-Perea v. Swarts, 95 AD3d 439 (1st Dept. 2012).

[14] 15 NYCRR 127.9(c)

[15] Gray v. Adduci, 73 NY2d 741 (1988)

[16] Peter Gerstenzang, Esq., Handling the DWI Case in New York, §41:50 at page 1014,(2012-13 Edition), citing In the Matter of the Administrative Appeal of Thomas A. Deyhle, Case No. D95-33398, Docket No. 18657 (DMV Appeals Board Decision dated August 1, 1997). [Note: I could not find a better authority for this rule].

[17] CPLR §2303

[18] CPLR §308(2)

[19] CPLR §§2303 & 8001(a)

[20] CPLR §2303

[21] 15 NYCRR 127.9(c)

[22] 15 NYCRR 127.6(b), and Matter of Fermin-Perea v. Swarts, 95 AD3d 439, at 442 (1st Dept. 2012)

[23] Matter of 25-24 Café Concerto Ltd. v. NY State Liquor Auth., 65 AD3d 260, 265 (1st Dept. 2009)

[24] VTL §1194(2)(d)(1)(a)

[25] Peter Gerstenzang, Esq., Handling the DWI Case in New York, §41:70 at page 829-830,(2007-08 Edition)

[26] VTL §263

[27] CPLR 217(1)

[28] Siegel, New York Practice §566 at page 975 (4th edition 2005)

[29] CPLR s. 304(a) and (c)

[30] CPLR §7804(d)

[31] Uniform Rule 202.7(f)

[32] CPLR §7804(c)

[33] Siegel, New York Practice §248 at page 422 (4th edition 2005)

[34] CPLR §6301

[35] CPLR §7804(c), Goldmark v. Keystone 7 Grading Corp., 226 AD2d 143, 144 (1st Dept. 1996), Velez v. Department of Correctional Services, 26 AD3d 623 (3rd Dept. 2006)

[36] Alexander, McKinney’s Practice Commentaries, C7804:5

[37] Id.

[38] CPLR §7804(b)

[39] CPLR §7803(4)

[40] Id.

[41] CPLR §7804(g)

[42] Id.

[43] I have used, and been very satisfied with Dick Bailey Service, Website: www.dickbailey.com

[44] For the First Department, Uniform Rule 600.7(2)

[45] Uniform Rules §600.11(a)(3)

[46] Uniform Rules §670.9(e)(1)

Michael F. Dailey, Esq.

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